27 Jan 2121

Before proceeding to hear an appeal filed by the accused against conviction in a case arising out of a police report, the accused or the court are not required to implead the informant as a party or serve the informant with notice - Gauhati High Court

Case : Smt Bormoty Panggeng v. The State of Arunachal Pradesh and Anr. Crl.A./205/2018

Court : Gauhati High Court

Bench : Justice Mir Alfaz Ali

Decided on : 27 Jan 2121

The Relevant Statutes

Section 372, 374, 378, 397, 401, 482, 225, 301, 24(8), 301(2), 4, 302, 372, 2(WA), 302(1), 385, 385(1), 374(2) of the Code of Criminal Procedure, 1973

Rule 1 (A) of the Criminal Rules and Orders (Chapter-II)

Brief Facts & Procedural History

1. The appellant filed an appeal against the learned Sessions Judge's decision of conviction and punishment. The case's informant was impleaded as a party responder, and he was served with notice. Despite the best efforts, the notice was not delivered to the informant/respondent. Because he left his place of abode in the state of Arunachal Pradesh for Dadra and Nagar Haveli after filing the FIR and did not return, the informant's whereabouts could not be determined.

The Issue(s) of the Case

Whether the informant must be served with a notice before proceeding with the hearing of an appeal preferred by the accused against the judgment of conviction?

The Observations of the Court

1. The Honourable Gauhati High Court referred to the case of J.K. International Vs. State (Govt. of NCT of Delhi) and Ors. (2001) 3 SCC 462, The Supreme Court held that when a case is charged by police, the accused is under no obligation to make the informant a party in a motion to halt the criminal proceedings, because it is the State's primary purpose to keep the case going. When a criminal process is sought to be quashed, however, it would be a denial of justice to him if he is denied the opportunity to be heard even after making a request to the court in that regard.

2. Referring to the case of Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters Pvt. Ltd. and Anr., reported in (2009) 2 SCC 363, Referring to Section 401 (2) Code of Criminal Procedure, 1973, the Apex Court stated that in a revision, every person, including an accused, who is affected by the order must be heard. The complainant filed an application u/s 156 (3) Code of Criminal Procedure, 1973 along with the complaint, requesting that the complaint be sent to the police for inquiry. The learned Magistrate, however, refused to exercise his jurisdiction under section 156 (3) of the Code of Criminal Procedure, 1973. Without impleading the accused, the complainant filed a revision of the Magistrate's judgement.

3. The petition was granted by the High Court, and the matter was remanded to the Magistrate. The defendants appealed the order to the Supreme Court. The Supreme Court heard an argument that the accused has no "locus" to be heard during the pre-cognizance stage. However, the Apex Court held that it was posted cognizance stage when the Magistrate, after taking cognizance, directed the complainant to adduce his witness for conducting an enquiry u/s 202 Code of Criminal Procedure, 1973 and that when the accused was prejudiced by the order, he was obliged to be heard.

4. Honourable Gauhati High Court observed that it is important to remember that the legislature's object purpose and intent in recognising the victim's right to participate in a criminal proceeding initiated at the accused's or the State's request within the scope of the Code of Criminal Procedure, 1973 scheme is to ensure that the aggrieved injured or relative of the deceased (victim), who is the ultimate sufferer and directly affected, receive justice. When viewed from this perspective, the victim is a person who is directly harmed by the crime and is referred to as the "person aggrieved." The victim, on the other hand, may or may not be the informant. As a result, the terms "victim" and "informant" should not be used interchangeably.

5. A victim could be a source of information. However, an informant does not have to be a victim, because criminal law can be initiated by anyone, regardless of whether or not they are personally "aggrieved" or "affected" by the crime because the question of "locus" or "person aggrieved" does not arise when filing an FIR for a cognizable offence. As a result, an informant who is not a victim or affected by the crime may not have any interest in a proceeding brought at the accused's request, or in any appeal against the accused's conviction, and as a result, there may be no need to serve notice on the informant or to plead the informant as a party. From this perspective, making it required or obligatory for the accused or the court to serve the informant with a notice before hearing an appeal against the accused's conviction is neither desirable nor helpful to the legislative intent.

The Decision Held by the Court

1. The Honourable Gauhati High Court gave a negative response to the question. The Gauhati High Court further held that impleading the informant as a party or serving the informant with notice is not required of the accused or the court before continuing to hear an appeal filed by the accused against conviction in a case arising out of a police report. However, with the approval of the court, the "victim" may participate in the accused's appeal against conviction and may hire a lawyer of his or her choice to help the Public Prosecutor in charge of the case, as well as submit written arguments. As a result, the Gauhati High Court believes that the learned Single Judge's directive in criminal appeal No. 222/2012, requiring the appellant to implead the informant in an appeal filed by the accused against conviction, does not reflect good law. The question is appropriately addressed.

2. The notice to the informant is not required. Allow the appeal to be scheduled for a hearing.

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